I understand why many conservatives do not like to acknowledge the sweep
of the post-New Deal commerce clause, and indeed have spent the last 20
years fighting it and paring it back. The New Deal conflict is never
entirely settled, and moreover, the New Deal involved no Article V
Amendments. Acknowledging that constitutional change is possible
without Article V Amendments is a challenge to much of the originalist
project. Bruce Ackerman has a famous, brilliant argument that in fact
we need to acknowledge non-Article V change if we hope to understand
either the Founding or Reconstruction. But most originalists cannot accept this; it’s too destabilizing for their theory.

So that’s what makes the case of the Elections Clause especially
interesting. Here we have an issue of federalism on which every
originalist must agree that a great deal of constitutional change
occurred in the nineteenth and twentieth centuries. You don’t need to
acknowledge any amendment analogues, super-statutes, or non-Article V
changes when you’ve got at least five straight-up Article V Amendments
(leaving aside here Bruce’s powerful argument that the Reconstruction
Amendments did not in fact satisfy the formal requirements of Article
V). Everyone agrees that every one of the five Article V Amendments
listed by Justice Thomas explicitly expands both federal constitutional rights and Congressional power in
the sphere of elections. (And I think one might also add to that list
the Seventeenth Amendment [direct popular election of Senators] and the
Twenty-Third Amendment [presidential votes for Washington D.C.], each
of which moves us incrementally further away from the old state-based
election system, and each of which contains an additional express grant
of Congressional power.) The question is whether all these Article V
changes ought to affect our constitutional analysis of federalism and
election law in a deep, structural way—or whether instead, we should
treat each clause of text like a separate, hermetically sealed time
capsule, so that subsequent constitutional changes might have
independent meaning, but have no effect on the meaning of older bits of
text.

Imagine, in other words, the Elections Clause in a time capsule, sitting
safely underground beneath the battlefield at Antietam, placidly
unaffected by any changes related to voting that may have arisen out of
that conflict. It sits similarly underground as suffragists march and
win, as the Civil Rights movement secures the Voting Rights Act that
introduced tough and intrusive new constraints on the actions of state
election officers and local registrars. Through all those changes and
more, we are supposed to imagine an Elections Clause safely below ground
(nevermind that it was being invoked and used by governments above) and
ready for an originalist justice to open the capsule in 2013.

I understand why many conservatives do not like to acknowledge the sweep
of the post-New Deal commerce clause, and indeed have spent the last 20
years fighting it and paring it back. The New Deal conflict is never
entirely settled, and moreover, the New Deal involved no Article V
Amendments. Acknowledging that constitutional change is possible
without Article V Amendments is a challenge to much of the originalist
project. Bruce Ackerman has a famous, brilliant argument that in fact
we need to acknowledge non-Article V change if we hope to understand
either the Founding or Reconstruction. But most originalists cannot accept this; it’s too destabilizing for their theory.

So that’s what makes the case of the Elections Clause especially
interesting. Here we have an issue of federalism on which every
originalist must agree that a great deal of constitutional change
occurred in the nineteenth and twentieth centuries. You don’t need to
acknowledge any amendment analogues, super-statutes, or non-Article V
changes when you’ve got at least five straight-up Article V Amendments
(leaving aside here Bruce’s powerful argument that the Reconstruction
Amendments did not in fact satisfy the formal requirements of Article
V). Everyone agrees that every one of the five Article V Amendments
listed by Justice Thomas explicitly expands both federal constitutional rights and Congressional power in
the sphere of elections. (And I think one might also add to that list
the Seventeenth Amendment [direct popular election of Senators] and the
Twenty-Third Amendment [presidential votes for Washington D.C.], each
of which moves us incrementally further away from the old state-based
election system, and each of which contains an additional express grant
of Congressional power.) The question is whether all these Article V
changes ought to affect our constitutional analysis of federalism and
election law in a deep, structural way—or whether instead, we should
treat each clause of text like a separate, hermetically sealed time
capsule, so that subsequent constitutional changes might have
independent meaning, but have no effect on the meaning of older bits of
text.

Imagine, in other words, the Elections Clause in a time capsule, sitting
safely underground beneath the battlefield at Antietam, placidly
unaffected by any changes related to voting that may have arisen out of
that conflict. It sits similarly underground as suffragists march and
win, as the Civil Rights movement secures the Voting Rights Act that
introduced tough and intrusive new constraints on the actions of state
election officers and local registrars. Through all those changes and
more, we are supposed to imagine an Elections Clause safely below ground
(nevermind that it was being invoked and used by governments above) and
ready for an originalist justice to open the capsule in 2013.